Most arbitration institutions have drafted either guidelines or actual codes governing arbitrator conduct. In fact, most arbitration rules regulate arbitrator conduct by regulating his power, duties, etc. Additionally, many arbitration organizations have a personality, meaning that they are skilled administrators conscious of their role, supportive of the arbitrator, dutiful to the parties, all encapsulated to protect the integrity of case administration, the validity of the award and their the hard-earned reputation as an ADR organization.
The international Bar Association (IBA) has published over the years several guidelines on arbitration. On this occasion, the IBA has adopted a set of guidelines on party representation in international arbitration. It is a rather surprising document in that it may lead any reader to wonder why the exercise, why state the obvious for seasoned legal practitioners in the practice of law.
In its preface, the IBA states: “Unlike in domestic judicial settings, in which counsel are familiar with, and subject, to a single set of professional conduct rules, party representatives in international arbitration may be subject to diverse and potentially conflicting bodies of domestic rules and norms.” While true, the standards laid out in the document are universal to the legal profession.
The above notwithstanding, the IBA remarks: “The use of the term guidelines rather than rules is intended to highlight their contractual nature. The parties may thus adopt the Guidelines or a portion thereof by agreement. Arbitral tribunals may also apply the Guidelines in their discretion, subject to any applicable mandatory rules, if they determine that they have the authority to do so.”
In a way, some guidelines for Counsel are the inverse of arbitrator basic ethics;
Once the Arbitral Tribunal has been constituted, a person should not accept representation of a Party in the arbitration when a relationship exists between the person and an Arbitrator that would create a conflict of interest, unless none of the Parties objects after proper disclosure.
Ex Parte communications between counsel and arbitrators are out as a matter of principle except in some circumstances. Those circumstances include interviewing prospective arbitrators. The point, perhaps, is that “prospective” means what it means, and that a person does not become arbitrator until (i) formally nominated and (ii) having after formally accepted the appointment as such.
“A Party Representative should not make any knowingly false submission of fact to the Arbitral Tribunal.” There are several items along these lines. This has nothing to do with “diverse and potentially conflicting bodies of domestic rules and norms.” Basic decency mandates truthfulness from Officers of the Court, Counsel.
The Guidelines’ section on information exchange and disclosure also appear self-evident, governed by most codes of conduct whether the representative is an attorney or a professional in any other discipline, although, clearly, these Guidelines are intended to guide legal counsel. Here is an example:
A Party Representative should not make any Request to Produce, or any objection to a Request to Produce, for an improper purpose, such as to harass or cause unnecessary delay.
A Party Representative should not suppress or conceal, or advise a Party to suppress or conceal, Documents that have been requested by another Party or that the Party whom he or she represents has undertaken, or been ordered, to produce.
On witnesses and experts “no kidding” is the only response that comes to mind: “A Party Representative should not invite or encourage a Witness to give false evidence.”
The Guidelines provide arbitrators with remedies for misconduct, including admonishing representatives. In case misconduct is appreciated by the arbitrators, they may “draw appropriate inferences in assessing the evidence relied upon, or the legal arguments advanced by, the Party Representative,” as well as “take any other appropriate measure in order to preserve the fairness and integrity of the proceedings.” That they would do, Guidelines or no Guidelines.
Not bad Guidelines, but are they necessary? We don’t quite get the point of this exercise.
To download the Guidelines: